Abstract

Central elements of the international liberal order include political commitments to multilateralism, human rights, democracy, free trade, and the rule of law. These central commitments–which are also the core legal issues that international courts are regularly called upon to adjudicate–are now being called into question. This book chapter explains how I see the future of international courts given the current political moment. Using the historical institutionalist concept of a critical juncture, I explain how the current critical juncture is very different from past critical junctures, but this difference does not necessarily portend a bleak future for international courts. Institutions are sticky, and they tend to endure. In the past, ICs sustained long periods of limited political support in “sleeping beauty mode,” a repose that endured until compliance constituencies seeking legal enforcement embraced litigation as a tool to promote their objectives. More problematic, however, is that international court’s legitimacy and authority are co-dependent on the legitimacy and authority of international law and of the rule of law more generally. The fate of international courts depends to a large extent on whether the political commitment to legality as a key source of political legitimation, and to a rules-based international order endures. The new challenge for international judges is, therefore, that ICs are actors that uphold the political system that is now being contested, and international judges will be asked to uphold this political system at a moment when their key domestic compliance partners are under siege.

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